Womack v. Sullivan et al

Filing 5

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/29/14 ORDERING that the Clerk of the Court randomly assign a United States District Judge to this case. Further, IT IS HERBEY RECOMMENDED that plaintiffs reques t for leave to proceed in forma pauperis be denied and this action be dismissed without prejudice to re-filing upon prepaymentof the $400 filing fee. Randomly assigned and referred to Judge William B. Shubb; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RODNEY JEROME WOMACK,

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Plaintiff,

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No. 2:14-cv-85-EFB P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

L. SULLIVAN, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the

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reasons explained below, the court finds that plaintiff has not demonstrated he is eligible to

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proceed in forma pauperis.
A prisoner may not proceed in forma pauperis:

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if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is under imminent danger of
serious physical injury.

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28 U.S.C. § 1915(g).

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Court records reflect that on at least three prior occasions, plaintiff has brought actions

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while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim upon

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which relief may be granted. See Womack v. Contra Costa County, No. C 04-3043 MMC, 2004

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U.S. Dist. LEXIS 21975 (N.D. Cal. Oct. 13, 2004) (identifying (1) Womack v. Superior Court,

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99-2470 MMC (N.D. Cal. July 6, 1999) (Order of Dismissal) and (2) Womack v. Daley, 99-2469

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MMC (N.D. Cal. July 6, 1999) (Order of Dismissal) as among the 42 U.S.C. § 1983 actions filed

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by plaintiff, which “were dismissed on the grounds that such actions were frivolous, malicious, or

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failed to state a claim upon which relief may be granted” and declaring plaintiff a three-strike

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litigant); Womack v. Donahoo, No. 2:12-cv-3110-WBS-EFB (E.D. Cal. Sept. 13, 2013) (order of

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dismissal for failure to state a claim).

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Further, it does not appear that plaintiff was under imminent threat of serious physical

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injury when he filed the complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d

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1047, 1055 (9th Cir. Cal. 2007) (section 1915(g) imminent danger exception applies where

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complaint makes a “plausible” allegation that prisoner faced imminent danger of serious physical

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injury at the time of filing). In the complaint, plaintiff alleges that his mental health care

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providers at Folsom State Prison refused to document his post-traumatic stress disorder, thereby

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preventing him from obtaining single-cell status. He claims he was so stressed out that he began

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grinding his teeth, until one of his molars broke into two pieces. In response to this incident,

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plaintiff was allegedly sent to the medical observation housing unit, where he was able to explain

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to the mental health providers his feelings about his post-traumatic stress disorder and his belief

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that his mental health providers were not documenting his concerns. Plaintiff’s dental needs were

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met at the medical observation housing unit, which then transferred plaintiff to a state mental

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hospital. The doctors at the state mental hospital apparently agreed that plaintiff suffers from

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post-traumatic stress disorder and that he should be single-celled during his stay there. Plaintiff

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claims that once he was “properly diagnosed and receiving correct medication for his PTSD[,] he

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was sent back to Folsom State Prison.” Plaintiff claims that when he returned to Folsom State

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Prison, he was placed in the Enhanced Outpatient Program, which is “a lock-up mental health

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single-cell program.” Plaintiff claims that before he was diagnosed by the providers at the state
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mental hospital, he had been retaliated against for refusing cellmates. He claims that the

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defendants had refused to treat his post-traumatic stress disorder and “single-cell issues” and/or

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retaliated against him for seeking single-cell status. ECF No. 1 at 11. Plaintiff, who claims to

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now be single-celled in the Enhanced Outpatient Program, has not demonstrated that he faced an

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imminent danger of serious physical injury at the time he filed the complaint. Thus, the imminent

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danger exception does not apply.

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Because plaintiff has not paid the filing fee and is not eligible to proceed in forma
pauperis, this action must be dismissed.
Accordingly, it is hereby ORDERED that the Clerk of the Court randomly assign a United
States District Judge to this case.
Further, IT IS HERBEY RECOMMENDED that plaintiff’s request for leave to proceed in

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forma pauperis be denied and this action be dismissed without prejudice to re-filing upon pre-

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payment of the $400 filing fee. See 28 U.S.C. §§ 1914(a), 1914 (District Court Miscellaneous

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Fee Schedule, No. 14), 1915(g).

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: January 29, 2014.

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